Feature

Avoiding False Claims of Illegal Discrimination

by Jeffery P. Woo

“I do not care if half the league strikes. Those who do will encounter quick retribution. All will be suspended, and I don�t care if it wrecks the National League for five years. This is the United States of America and one citizen has as much right to play as another.”
— Ford Frick, National League President, in a statement directed to members of the St. Louis Cardinals who threatened to strike because of Jackie Robinson (1947).

“Never make a defense of apology before you be accused.”
—Charles I

Each day we discriminate. We choose between brands of peanut butter. We change the channel on our television. We make choices about where to eat and what to buy. When it comes to a landlord choosing tenants, however, there are illegal bases of discrimination that are forbidden.

State and federal laws make it illegal for a landlord to refuse to rent to a person based upon their gender, race, creed, color, religious affiliation, disability, country of origin, sexual orientation, marital status, family status (including family size provided it is not in excess of allowable state law), source of income, or even the fact that the tenant has a water bed. Not only are these restrictions morally right, they serve the economic and civil interests of our society. In order to enforce these restrictions against illegal discrimination, our laws provide that a tenant who is unlawfully discriminated against may recover damages for pain and suffering, treble damages, punitive damages and attorney's fees.

Barring the illegal reasons set forth above, a landlord is free to use his/her subjective judgment to discriminate on any other basis. For instance, you may not want to rent to a lawyer. By reputation, they are obnoxious, overbearing, and, worst of all, litigious. While that generalization is completely false, our laws allow you to discriminate based on that false belief. If you don�t want to rent to a lawyer, you don�t have to.

But what happens when that obnoxious, overbearing and litigious attorney applying for your vacant apartment is also Asian? How are you going to prove that you rejected him because of his profession and not his race?

The answer lies in the creation of a fair, uniform, and private process of evaluation for each prospective tenant. Eliminate the practice of giving, or even the appearance of giving, any preference to prospective tenants whose applications are submitted first in time. Instead, state a deadline when all completed applications must be submitted. Give applications to anyone and everyone who requests one prior to your stated deadline. Even if the applicant tells you that he doesn't have a job yet because he's just gotten out of prison, or worse, that he's a lawyer, give him the application. The goal, again, is to create a fair and uniform process.

At a minimum, your application should request resident and job history, including contact information that allows you to verify the representations, personal references, contact information for nearest relatives, banking information, social security number and California driver's license or California identification number.

The deadline should be sufficiently long enough to attract enough applicants from which to choose. Also, with today's difficult rental market, the price you advertise will greatly affect the number of qualified candidates you get. For a lot of landlords, finding a good tenant is worth getting a little less than the market value. If you feel that way, be sure to advertise a price accordingly to attract the largest pool of applicants from which to choose.

Once the deadline has passed, you are now able, in the privacy of your own mind, to evaluate and judge each applicant, both against your own absolute subjective standards and against the other applicants. You may compare candidates based on income (but not source of income), the job they hold or even their personalities. Choosing tenants is more art than science, and hopefully you will have chosen a good one.

But what if no acceptable candidates submit applications by your deadline? Well, you can't let that happen. First, the deadline should be sufficiently long for you to be able to take a mid-stream adjustment in your advertising. Then you must do an evaluation of the applications you have mid-stream. If, for instance, you enact a one-month deadline, be prepared to lower your asking price after two weeks should the pool of candidates appear very slim or unqualified. If you wait until the end of your deadline to realize that no qualified candidates have applied, you have placed yourself in a position of explaining to those who have applied why they were not chosen. Because you will not be able to simply say that a more qualified applicant was chosen, you run that risk of false accusation.

Once you've chosen an applicant, then run the credit check—preferably SFAA's three-bureau credit check with court-docket search for unlawful detainer filings (evictions). Remember, Civil Code Section 1950.60 allows you to collect from a prospective tenant the actual cost of doing a credit check up to $30. If you do run a credit check, the applicant is entitled to a copy of it.

More than anything else, false claims of discrimination are made when the process of selection appears unfair. In an earlier time, a landlord could simply rely on her judgment in picking the first applicant she felt was the perfect tenant. Today, with our litigious society, much more care must be made to demonstrate that our subjective judgments are not acts of unlawful discrimination, and that starts with a fair and uniform process.

The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of the SFAA or the San Francisco Apartment Magazine. Jeffery P. Woo, a third-generation Chinese American, is principle of the law firm of Woo & Associates. He can be contacted at 415.705.6470